Here are two questions that are far more difficult than they first appear:

  • What is a church?
  • How do the courts resolve a dispute inside a religion?

One of the many big challenges is having someone outside a faith tradition look into that group’s beliefs. You will likely see what seems to be weird stuff. Silly stuff.

Consider what Glenn Reynolds said on 1-7-13 when discussing the idea of figuring out what constitutes religion under the 1st amendment:

That’s the topic of my never-finished law review article: The Elvis Problem: Defining Religion Under The First Amendment. It grows out of something I use in Constitutional Law class: What if I told you that there was a man who was worshipped by millions before he died, who’s often sighted by followers today, post-death, whose home is a shrine and whose relics are eagerly sought and traded? Whose acolytes take on his attributes before adoring and transported crowds? Whose followers attribute miracles to him? Isn’t that a religion?

That sounds a lot like a description of traditional Christianity doesn’t it?

Not so fast.

He continues:

(That’s when I tell them it’s Elvis). If needed, I guess I could show {a video} with the line “a new religion that will bring you to your knees,” but that would probably be overkill — and now there’s a documentary on the theme).

This is why courts don’t want to get involved in doctrinal disputes inside a religion.


Then, of course, to illustrate courts’ unwillingness to get involved in intra-church disputes I posit a schism in The Church Of Elvis, between those who believe that the King’s commandment is “Love Me Tender,” and those who favor “Don’t Be Cruel,” followed by a further split between the “Don’t Be Cruel” crowd and those who insist it’s “Don’t Be Cruel — To A Heart That’s True!”Splitters!

There are lots of arguments inside different denominations. To someone inside a faith tradition, there is a very clear, exquisitely obvious, fight-to-the-death answer to those issues.

To someone outside a particular faith, those internal arguments make about as much sense as the vicious fight between the “Love Me Tender” and the “Don’t Be Cruel” factions. 

How could an outsider possibly resolve the tender/cruel schism?

Or decide whom to ordain?

Or whether the religion’s holy writings have some errors or are perfectly accurate? The stories are mostly symbolic or every one is literally true?

Or whether, on one hand, the position on some new issue in a denomination is perfectly consistent with their holy writings and their positions over the last two hundred years or, on the other hand, is actually so horribly heretical that local churches have no choice but to leave the denomination? And take their property with them?

Some Christian churches believe that the wine used in communion literally becomes blood during communion. Others believe that Jesus is somehow actually present in the wine even though it is still wine. Others believe communion is a memorial event. Others believe it is wrong to use wine.

People inside each of those denominations believe their position is perfectly reasonable and perfectly consistent with the Bible.  People in one denomination look at the position in another group and see error. People outside the Christian faith tradition see foolishness in all those positions. How can a court decide which is “correct”?

That is why governments need to leave religious groups alone to the maximum extent possible.  Religious freedom is critically important. Outsiders cannot be allowed to decide what religious groups believe.


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